Court restricts kid porn evidence

Police who investigated a Bernards doctor on child pornography allegations violated the physician's rights when they interrogated him during a raid of his home, and the bulk of what he told them cannot be used in court, a Superior Court judge ruled yesterday.

Judge Edward Coleman, sitting in Somerville, said State Police violated Ross Finesmith's constitutional right to remain silent and his right to an attorney during their search for videos of a child being raped. They failed to administer the Miranda warnings before interrogating him.

Finesmith, 47, a pediatric neurologist, was one of 39 people police accused of downloading and sharing the infamous "Baby J" series, videos a Georgia man made while sexually abusing his daughter.

The state Attorney General's Office, which is prosecuting the case, has accused Finesmith of second-degree distribution and fourth-degree possession of child pornography.

The married father of three girls has denied the claims and his attorneys filed motions to keep his statements and evidence from his laptop computer out of court. Finesmith's attorneys also wanted Coleman to keep the state from playing the videos in question, believing they would prejudice jurors.

Coleman last month heard testimony outlining the chain of events that transpired that morning. Finesmith's house was the last one State Police searched as part of the investigation dubbed Operation Guardian.

Finesmith returned to court yesterday with his attorneys Paul Brickfield and Alain Leibman. Deputy Attorney General Kenneth Sharpe appeared for the state.

Coleman agreed to suppress the statements Finesmith gave after the cadre of State Police and other law enforcement officials entered his home in Basking Ridge shortly before 6 a.m. on Jan. 27, 2005.

The question centered on whether Finesmith was in custody at that time. Coleman said a person does not have to be under arrest or at police headquarters to be considered such. If a person is in custody, the Miranda warnings should be administered, he said.

While in the house, officers watched Finesmith's every move and kept him from communicating with his wife.

A State Police detective questioned him in the kitchen, while officers hovered nearby, and his wife, Leslie, had to persuade an officer to allow her to take the girls to school.

"He was always escorted by the police. He was always watched by the police," Coleman said, and "the entire family was not allowed to freely go about their routine."

"A reasonable person in the defendant's position would conclude that he was in custody," he said.

When the investigator ultimately read him his rights, including his right to an attorney, Finesmith said: "Can I see one?"

"It's clear to everybody what he meant," Coleman said.

Finesmith was arrested and taken to police headquarters, where the State Police detective read him his rights again. Unbeknownst to Finesmith, Leibman called headquarters twice to tell police he was representing Finesmith's and to cease questioning.

Instead, the detective got Finesmith to sign a consent form allowing police to return to the home and retrieve the laptop from his vehicle. At that time, Finesmith said he wanted to talk to a lawyer because he was concerned about patient confidentiality.

Requests for counsel, no matter how ambiguous, have to be scrupulously honored, and it should have been granted immediately, the judge said.

Coleman said that while the consent form was invalid, the search warrant used to enter the house the first time was for all the computers. Finesmith and his wife had mentioned the laptop.

"It's obvious from the actions of the police that the search for the laptop never really stopped," Coleman said, ruling evidence from the laptop is admissible.

Jurors will have access to that evidence and will be able to see a portion of the child pornography.

Brickfield last month argued the videos would prevent Finesmith from having a fair trial. "They are quite graphic," he said.

Sharpe insisted the state should have a right to show the footage. "It is the evidence that goes straight to the charge," he said.

Yesterday, Coleman said courts have ruled the prosecution has a right to present its case as it sees fit. While the videos are longer, Coleman ruled that the state could compile one minute of footage from each of three videos.